STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED Plaintiff Below, Respondent 

January 5, 2018 

vs) No. 16-1110 EDYTHE NASH GAISER, CLERK (Marion County 16-F-12) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Jeffrey Lynn Hovatter, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Jeffrey Lynn Hovatter, by counsel Neal Jay Hamilton, appeals the Circuit 

Court of Marion County’s “Sentencing Order” entered on November 4, 2016, wherein in the 

circuit court sentenced petitioner to life in prison without the possibility of parole following his 

conviction of first degree murder. Respondent State of West Virginia, by counsel Robert L. 

Hogan, filed a response. On appeal, petitioner challenges the circuit court’s failure to (1) conduct 

a pretrial hearing to determine whether to bifurcate the guilt and mercy phases of the trial and (2) 

sustain objections to allegedly prejudicial and improper opinion testimony. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

In February of 2016, a grand jury indicted petitioner on a single count of murder in the 

first degree. Petitioner was accused of fatally shooting his ex-wife, Nancy Eileen Shaw, in her 

residence in Fairmont, West Virginia. The case proceeded to a jury trial in which the evidence 

revealed that on the evening of July 30, 2015, petitioner traveled from his home in Preston 

County, West Virginia, to the victim’s residence. The victim’s neighbors heard petitioner and the 

victim loudly arguing, unsuccessfully attempted to enter the victim’s residence, and then notified 

police. The police arrived at the victim’s residence shortly thereafter and forced entry into the 

home. As police ascended the stairway toward the victim’s second-floor bedroom, they heard 

two gunshots and exited the premises in order to notify the Marion County Sheriff’s Department 

Special Response Team. When the Special Response Team entered the bedroom, they discovered 

the victim, deceased, with a gunshot wound to her forehead and petitioner with a gunshot wound 

to his face from an apparent attempted suicide. Petitioner was still conscious. 

Prior to trial, petitioner underwent a psychiatric evaluation to determine his competency 

to stand trial and criminal responsibility. The evaluation determined that he exhibited symptoms 

of major depressive disorder and substantiated instances of delusions and hallucinations during 

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his initial months in jail following his arrest. However, the evaluation concluded that petitioner 

was competent to stand trial and that his “ability to conform his conduct to the requirements of 

the law” was not impaired at the time of the crime. Petitioner did not request bifurcation of the 

guilt and mercy phases of the trial. 

After four days of trial, the jury found petitioner guilty of murder in the first degree and 

did not recommend that he receive mercy in sentencing. Following a hearing, the circuit court 

sentenced petitioner to life in prison without the possibility of parole by order entered on 

November 4, 2016. This appeal followed. 

Petitioner raises two assignments of error on appeal. First, he asserts that the circuit 

court’s failure to conduct a pretrial hearing to determine whether he voluntarily, knowingly, and 

intelligently desired a unified trial violated his state and federal constitutional due process rights. 

Petitioner’s counsel states that he and petitioner discussed whether to have a bifurcated or unitary 

trial in advance of trial, and made no motion for bifurcation. However, petitioner argues that 

under the unique circumstances of this case -- in which petitioner suffered a severe head injury 

and experienced delusions while in jail -- the circuit court should have conducted a hearing to 

determine whether petitioner understood his decision in the context of his due process rights. 

Petitioner adds that, in reviewing the denial of bifurcation motions, other courts have recognized 

that unitary trials are replete with possible prejudice. For example, he argues, the United States 

Court of Appeals District of Columbia Circuit has stated that 

a unitary trial involving both the merits and the issue of criminal responsibility is 

replete with potential sources of prejudice. Accordingly, especially since the cost 

of bifurcation to substantial state interests is often minimal or even negative, the 

trial court should be alert to the need for separate trials whenever the accused 

proposes to present an insanity defense, regardless of whether defense counsel 

makes an initial request or an initially sufficient showing of need. In this area as 

in others, the realities of the contemporary criminal process, in which commonly 

indigent defendants are often represented by counsel unfamiliar with the 

intricacies of criminal law and procedure, require the trial court’s active concern 

to insure the fairness of the trial. 

Contee v. United States, 410 F.2d 249, 250 (D.C. Cir. 1969) (citing Holmes v. United States, 363 

F.2d 281 (1966)). This point is especially true, petitioner asserts, where the defense relies on 

insanity or diminished capacity. See Schofield v. W.Va. Dep’t of Corr., 185 W. Va. 199, 207, 406 

S.E.2d 425, 433 (1991)(Workman J., dissenting)(“The determination of whether a defendant 

should receive mercy is so crucially important that justice for both the state and defendant would 

be best served by a full presentation of all relevant circumstances without regard to strategy 

during trial on the merits.”). 

Upon our review of the record and our applicable precedent, we must reject petitioner’s 

argument. As the State points out, the circuit court is not obligated to consider bifurcation sua 

sponte; rather, it is incumbent on the defense to pursue it. In syllabus point 4 of State v. LaRock, 

196 W.Va. 294, 470 S.E.2d 613 (1996), this Court held that “[a] trial court has discretionary 

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authority to bifurcate a trial and sentencing in any case where a jury is required to make a finding 

as to mercy.” We recently held further that 

[w]hether or not to make a motion for a bifurcated mercy proceeding pursuant to 

State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996), is a matter of strategy 

and tactics and is thus a decision to be made by the parties and their advocates. A 

trial court does not have a duty to sua sponte order bifurcation. 

Syl. Pt. 8, State v. Heater, 237 W. Va. 638, 790 S.E.2d 49 (2016), cert. denied sub nom. Heater 

v. W. Virginia, 137 S. Ct. 1829, 197 L. Ed. 2d 771 (2017). 

Additionally, as part of petitioner’s competency evaluation, it was determined the 

petitioner was able to “consult with his attorney with a reasonable degree of rational 

understanding.” Thus, we find no basis upon which to conclude that petitioner failed to 

understand the discussion with his counsel regarding whether to pursue bifurcation. Relying on 

Contee and Holmes, petitioner urges this Court to change our law; under the facts of this case, 

we decline to do so. Accordingly, because petitioner did not seek a bifurcated trial, we find no 

error. 

Petitioner’s second and final assignment of error is that the circuit court failed to sustain 

objections to prejudicial statements and improper opinion testimony of Detective Eric Hudson 

during the State’s case-in-chief. Petitioner challenges three statements made by Detective 

Hudson during his testimony, which the circuit court admitted over petitioner’s objection. First, 

Detective Hudson described the victim’s wounds as follows: 

It was obvious to me due to the concave nature of the wound and upon turning her 

hand over, the presence of a vast amount of powder stippling that she had her 

hand up in front of her face and was struck by the bullet on her finger . . . before it 

struck her in the forehead. 

Detective Hudson next described a crime scene photo, saying, “I believe it depicts the 

empty cartridge that took Nancy Shaw’s life.” Third, Detective Hudson testified as follows with 

regard to another photo: 

[Detective Hudson]: I charge you to look at this photo and see how much
 

gunpowder is present on Ms. Shaw’s hand. Seventy-two (72) inches as [defense
 

counsel] wanted to muddy the waters, would be –
 

[Defense counsel]: Objection to characterizing –
 

[Detective Hudson]: I’m sorry. My apologies.
 

THE COURT: Stay to the facts.
 

[Detective Hudson]: Yes sir.
 

This Court has held that “[a] trial court’s evidentiary rulings, as well as its application of 

the Rules of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 4, 

State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998). Additionally, 

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[i]n order for a lay witness to give opinion testimony pursuant to Rule 701 of the 

West Virginia Rules of Evidence (1) the witness must have personal knowledge 

or perception of the facts from which the opinion is to be derived; (2) there must 

be a rational connection between the opinion and the facts upon which it is based; 

and (3) the opinion must be helpful in understanding the testimony or determining 

a fact in issue. 

Syl. Pt. 9, State v. McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014) (citation omitted). “The 

determination of whether a witness has sufficient knowledge of the matter in question so as to be 

qualified to give his opinion is largely within the discretion of the trial court and will not 

ordinarily be disturbed on appeal unless clearly and prejudicially erroneous.” Syl. Pt. 4, Cox v. 

Galigher Motor Sales Co., 158 W. Va. 685, 213 S.E.2d 475 (1975). 

Upon our review, Detective Hudson’s statements at trial regarding the victim’s wound 

and the empty bullet cartridge were admissible lay witness testimony. The record establishes that 

he personally visited the crime scene and had served in law enforcement for approximately six 

years. Thus, he was speaking to facts he personally observed in the context of his experience as a 

police officer. The rational connection between his opinions and the facts he observed is clear 

and assisted the jury in determining the nature of the victim’s death, i.e., a gunshot wound. 

Finally, with respect to Detective Hudson’s third statement about the presence of gunpowder on 

the victim’s hand, the record clearly shows that the circuit court sustained defense counsel’s 

objection and directed Detective Hudson to “stay to the facts.” Accordingly, we find no basis 

upon which to reverse petitioner’s first-degree murder conviction. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: January 5, 2018 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

DISSENTING: 

Justice Robin Jean Davis 

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