### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, 

### FILED
Plaintiff Below, Respondent 

### October 12, 2018

EDYTHE NASH GAISER, CLERK vs.) No. 17-0912 (Greenbrier C ounty 16-F-121) SUPREME COURT OF APPEALS

OF WEST VIRGINIA
Larry Vernon Hoke, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Larry Vernon Hoke, by counsel Pa ul S. Detch, appeals the Circuit Court of Greenbrier County’s September 7, 2017, order senten cing him to ten years of incarceration following his conviction of one c ount of voluntary manslaughter. The State of West Virginia, by counsel Robert L. Hogan, filed a response in support of the circ uit court’s order. On appeal, petitioner argues that the circuit court erred in refusing to permit a witness to read from his medical records and that the State “commit[ted] reversible error” by making certain statements during closing argument.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

In October of 2015, petitioner was involved in a gunfight with his stepdaughter, Glenda

Hull 1 (“the victim”), during which pe titioner was wounded and the vic tim was killed. At the time of the incident, the victim lived in a trailer across Route 92 from petitioner’s home in Greenbrier County. According to petitioner, th e trailer, owned by hi s son, was in the pr ocess of being moved and had the power turned off. Petitioner indicates th at “no one was supposed to be living in it.” Of relevance to the incident, peti tioner also alleges that he “h ad long[-]standing troubles with” the victim related to allegations that she stole property from his family in order to support a drug

habit.

1 Throughout his brief, petitioner refers to th e victim as “Glenna Hull.” However, the record on appeal, including the indictment charging petitioner with th e victim’s murder, refers to

her as “Glenda Hull.”

1On the day in question, petitioner was at the trailer when the victim arrived and entered the dwelling. According to pe titioner’s testimony, he followed the victim inside, although he acknowledges that his testimony regarding “h is purpose [for following the victim was] unclear[.]” Indeed, petitioner’s te stimony established that he either wanted to obtain the victim’s keys to the trailer or confront her about allegati ons that she had stolen guns from him and later

sold them. Petitioner test ified that the victim shot him with a shotgun as soon as he entered the trailer. As petitioner attempted to “talk [the vi ctim] out of any further hostilities[,]” he claims that she then shot him a second time. At this poin t, petitioner admits that he drew his .45 caliber pistol and shot in the victim’s direction five or six times from the same location. The State, however, contended that petitioner confronted the victim about her keys to the trailer outside the dwelling and then followed her inside, where petiti oner fired on the victim first and she returned

fire in self-defense. Petitioner fled the scene and, after being taken into custody, was eventually transported to Roanoke, Virgin ia, for medical treatment.

As a result of this incident, petitioner was indicted on one count of firs t-degree murder in October of 2016. In May of 2017, petitioner’s jury trial commenced. During trial, two officers with the Greenbrier County Sheriff’s Department testified that .45 calibe r shell casings were

found in several locations both inside and outsid e the trailer, including one shell casing found on the back porch, one just inside th e door to the back porch, and tw o further inside the kitchen and hallway. Testimony from law enforcement further established that shell casings normally come to rest in the vicinity of where the bullet was disc harged. In his defense, pe titioner testified to his

version of events as set forth above, including his assertion that the victim shot him twice during the gunfight. Additionally, petitioner indicated that he wished to call his daughter, Misty Hill, to testify regarding his injuries. Ms. Hill is a nur se who assisted petitioner while recuperating following the altercation at issue. Specifically, petitioner sought to have Ms. Hill read from his medical records that “ma[d]e reference to the f act that [petitioner] was suffering from multiple gunshot wounds.” According to petitioner’s c ounsel, Ms. Hill was “willing to repeat” these records. During a discussion with the circuit court, however, concerns were raised about the hearsay nature of the potential testimony, the lack of authentic ity of these records, and the witness’s ability to provide a medical opinion. Ultimately, the circuit court did not make a ruling on the admissibility of this testimony, but petitione r’s counsel indicated th at he would “try to stay away from it” during his examination of Ms. H ill. Petitioner did not attempt to introduce this testimony during trial or otherwis e introduce the medical records in question. At the conclusion of the trial, the jury found pe titioner guilty of vol untary manslaughter. That same month, petitioner filed a motion for a new trial, which the circuit court later denied.

In September of 2017, the circuit court senten ced petitioner to ten years of incarceration for his conviction of voluntary manslaughter. It is from the circuit court’s sentencing order that petitioner appeals.

On appeal, petitioner argues that the circuit court erred in refusing to permit Ms. Hill to read from his medical records during her testimo ny and that the State committed reversible error in arguing during its closing argument that petitioner di d not produce any evidence to

2corroborate his testimony that the victim shot him twice during their altercation. 2 In support of these assignments of error, pe titioner predicates the State’s alleged improper remarks during closing on the circuit court’s refusal to permit hi m to allow Ms. Hill to read from his medical records. Essentially, petitioner argues that becau se he was denied the ability to introduce evidence of his multiple gunshot wounds, the State improperly referenced evidence not admitted at trial during its closing and impermissibly shif ted the burden of proof to petitioner. We do not

agree.

In regard to his assignment of error conc erning his allegation th at Ms. Hill was not permitted to read from his medical records, it is important to note that the circuit court did not deny petitioner the right to introduc e evidence of his medical record s. Instead, the record clearly shows that petitioner’s counsel voluntarily abandoned his planne d questioning of Ms. Hill in regard to the medical records without securing a ruling from the circuit court on the admissibility of that evidence, thus precluding review of the issue on appeal. Prior to Ms. Hill’s testimony, the following discussion between the partie s and the circuit court occurred:

THE COURT: Please be seated. Counsel, is there any matter we need to address before the jury returns?

[DEFENSE COUNSEL]: Yes, Your H onor, there is something Mr. Via [the prosecutor] and I have been discussing here . . . . The problem that I have is that the next witness will be a Misty Hill. She is highly trained as a nurse. She’s ER nurse. She’s been an operating room nurse, and she is the daughter of [petitioner]. She went to Roanoke to a ttend and care for him and knows about his injuries. Now, then, I really don’t want to call her per se as an expert simply because she is the daughter, but she also is a highly trained observer. [W]e have

some of the medical records from Roanoke in which they make reference to the fact that [petitioner] was suffering from multiple gunshot wounds. She’s pulled

2 In the section of his appellate brief labeled “Statement of the Case,” petitioner impugns the State’s investigation and calls into question certain facts base d on several issues he perceives as problematic, including his as sertion that “crime scene management was a disaster” following the gunfight. We note, however, that petitioner pr ovides no argument related to these assertions and does not challenge the sufficiency of the evid ence on appeal. At best, in the argument section of his appellate brief, petiti oner characterizes the State’s evidence against him as weak and highlights his testimony concerning the incident in question. He does not, however, at any point raise any argument concerning the sufficiency of the evidence against him or otherwise cite to any authority regarding the sufficiency of the ev idence in criminal proceedings. Accordingly, we decline to address any allegations concerning the evidence, give n that he provides no argument in support of these general allegations. See Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure (requiring that briefs “must contain an argument exhibiti ng clearly the points of fact and law presented . . . and citing the authorities relied on” and permitting the Court to “disregard errors that are not adequately supported by sp ecific references to th e record on appeal”).

3them out and is willing to repeat them or discuss them. I’m not sure what I’m going to do when we get there.

THE COURT: I’m pretty sure what [t he prosecutor] is going to do if you get there. Mr. Via?

[Prosecutor]: Yes, sir. I don’t have an objection if Ms. Hill has personal knowledge of how many times [petitioner] was shot or something like that, but what I do object to is reciting from th e medical record anything that would constitute a medical opinion because sh e’s just not qualified to give it.

THE COURT: Well, if she’s simply r eciting from a record, it’s hearsay.

[DEFENSE COUNSEL]: Well, it’s a business records exception.

THE COURT: Do you have any way of establishing that it’s a business

record?

[DEFENSE COUNSEL]: Well, we’ve agreed to provide it to them, but we don’t have to authenticate it, but it is a business record. It’s a medical record.

[Prosecutor]: Again, it is the accurate record because the State obtained them ourselves as well, but that doesn’t mean you can come in here and recite a medical opinion. I can’t cross-examine a busin ess record. And first of all, I think, Judge, that the statements referencing th e two shots in these records are patient reporting anyway. I don’t think it is a medi cal diagnosis, but for her to read it off as if it is, is going to be a huge problem.

[DEFENSE COUNS EL]: Okay. I hate to say that I’m reading faces of judges, but you don’t seem to be like you’re going to admit it. I will try to stay away from it, okay?

At this point, petitioner called Ms. Hill to te stify and thereafter did not question her about the medical records at issue. On appeal to this Court, petitioner specifically alleges that the circuit court erred in not permitting Ms. Hill to “read[] from the medical records.” As stated above, this argument wholly mischaracterizes the nature of the proceedings below, given that the circuit court made no such ruling on petitioner’s stated desire for Ms. Hill to read from the records in question. Instead, it was petitioner’s abandonment of this line of questioning that resulted in no actual ruling on this issue.

In the context of the admissibility of evidence, we have routinely held that “[a] trial court’s evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 4, State v. Rodoussakis , 204 W.Va. 58, 511 W.Va. 469 (1998). Here, we are precluded from reviewing this issue to determine whether

the circuit court abused its discre tion because petitioner prevented the circuit court from actually making an evidentiary ruling. Instead, he simply c hose not to attempt to admit the evidence in

4question. We have previously addr essed failures to properly pr eserve issues for appeal as

follows:

“This Court will not consider an error which is not properly preserved in the record nor apparent on the face of the record.” Syl. pt. 4, State v. Browning , 199 W.Va. 417, 485 S.E.2d 1 (1997). The raise or waive rule has been explained as part of a design “to prevent a party fr om obtaining an unfair advantage by failing to give the trial court an opportunity to rule on the objection and thereby correct potential error.” State v. Guthrie , 205 W.Va. 326, 344, 518 S.E.2d 83, 101 (1999) (internal quotations and citation omitted). Fu rther, we have noted that the raise or waive rule seeks to “prevent[ ] a party fr om making a tactical decision to refrain from objecting and, subsequently, should th e case turn sour, assigning error (or even worse, planting an error and nurturing the seed as a guarantee against a bad result).” State v. LaRock , 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996).

State v. Larry A.H. , 230 W.Va. 709, 716 n.19, 742 S.E.2d 125, 132 n.19 (2013). Here, petitioner denied the circuit court the opportu nity to rule on the admissibili ty of any potential testimony from Ms. Hill by abandoning his at tempt to introduce the same. Indeed, on review, this Court has no way of ascertaining what Ms. Hill’s testimony would have been; what the medical records at issue contained; what the State’ s specific objection to the testimony would have been, if any; or

how the circuit court would have ruled. For these reasons, we find that petitioner is entitled to no relief in this regard.

In regard to petitioner’s second assignment of error, we decline to address petitioner’s argument that the State committed reversible e rror in its closing argument. According to petitioner, the following statements by the State during its closing c onstitute reversible error:

You know, a lot’s been made about the seve rity of [petitioner’s] injury, and I tried

to make it clear earlier there is no di spute that he was shot. I’m sure you understand that, that we are not disputing that he was shot, but I want you and ask you to consider what cred ible testimony you heard from that chair besides [petitioner’s] version of events, was any ot her witness able to credibly look at his injuries and describe that definitively as two shotgun injuries? Did you hear that? Anywhere? From anybody?

Specifically, petitioner argues that “the prosecuti ng attorney knew that this argument was false and misleading” given that he attempted to introduce evidence of multiple gunshot wounds through Ms. Hill’s testimony and “she was not perm itted to read the medical records.” As such, petitioner argues that the State impermissibly sh ifted the burden of proof “when it was the duty of the State to offer testimony he’d only been s hot once.” According to petitioner, the State had no evidence to support that he was shot only once.

However, it is important to note that petitione r did not object to the statements in question during trial. We have previously held that

5“[f]ailure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court.” Syl. pt. 6, Yuncke v. Welker , 128 W.Va. 299, 36 S.E.2d 410 (1945).

Syl. Pt. 3, State v. Rollins , 233 W.Va. 715, 760 S.E.2d 529 (2014). Accordingly, we find that petitioner has waived this issue fo r appeal. We further decline to apply plain error, as petitioner urges, given the fact that the State’s comments during closing argument accurately reflected the evidence presented. 3 Regarding plain error, we have held as follows:

“Our standard of review for issues not properly preserved for appeal, or not presented to the trial court for resolu tion prior to an appeal, is plain error. There are four elements that must be shown to exist before plain error applies: “To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substant ial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syl. pt. 7,

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

State v. Davis , 232 W.Va. 398, 407, 752 S.E.2d 429, 438 (2013). In support of his assignment of error, petitioner essentially argues that th e State’s comments were improper because the prosecutor knew he attempted to introduce evid ence of multiple gunshots through Ms. Hill and that the State was not permitted to address evid ence not admitted at trial. Again, we note that petitioner’s abandonment of his attempt to introduce this evid ence through Ms. Hill or any other

witness does not constitute an exclusion. We furt her note that the State hi ghlighting the fact that petitioner’s testimony, including th e number of times he was shot, was uncorroborated does not constitute an error, let alone an error that woul d trigger application of plain error. Accordingly, we find that petitioner is entitled to no relief.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: October 12, 2018

3 It should also be noted that petitioner fails to cite any authority concerning plain error, the standard for obtaining relief under this doctrine, or otherwise apply such authority to the facts of his case. Instead, petitioner simply alleges that “[a]fter the Court’s ruling on [Ms.] Hill, this argument should be treated as plain err [sic].”

6CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Paul T. Farrell sit ting by temporary assignment

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Allen H. Loughry II suspende d and therefore not participating.

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