IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2026 Term FILED May 21, 2026 released at 3:00 p.m. No. 23-272 C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
STATE OF WEST VIRGINIA, Plaintiff Below, Respondent,
v.
HEATH ALLEN ROSE, Defendant Below, Petitioner.
Appeal from the Circuit Court of Mingo County The Honorable Miki Thompson, Judge Case No. 22-F-135
AFFIRMED
Submitted: January 14, 2026 Filed: May 21, 2026
John B. McCuskey, Esq. Joseph H. Spano, Jr, Esq. Attorney General Pritt & Spano, PLLC Lara Bissett Charleston, West Virginia Assistant Attorney General Counsel for Petitioner Andrea Nease, Esq. Deputy Attorney General Office of the Attorney General Charleston, West Virginia Counsel for Respondent
JUSTICE WOOTON delivered the Opinion of the Court. CHIEF JUSTICE BUNN concurs and reserves the right to file a separate opinion. 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. “‘‘To preserve an issue for appellate review, a party must articulate it
with such sufficient distinctiveness to alert a circuit court to the nature of the claimed
defect.” Syllabus point 2, State ex rel. Cooper v. Caperton, 196 W. Va. 208, 470 S.E.2d
162 (1996).’ Syllabus point 10, State v. Shrewsbury, 213 W. Va. 327, 582 S.E.2d 774
(2003).” Syl. Pt. 1, State v. Sites, 241 W. Va. 430, 825 S.E.2d 758 (2019).
3. “An error in the admission of evidence not objected to by the
defendant is deemed waived by him.” Syl. Pt. 10, State v. Bragg, 140 W. Va. 585, 87
S.E.2d 689 (1955).
i WOOTON, Justice:
The petitioner, Heath Allen Rose, appeals the Circuit Court of Mingo
County’s February 16, 2023, sentencing order following a jury trial in which he was
convicted of one count of second-degree murder and two counts of wanton endangerment.
At trial the jury found that on February 17, 2022, the petitioner shot and killed Mr. Joda
Browning when he saw Mr. Browning with Ms. Brittany Kennedy, a woman with whom
the petitioner was involved in a romantic relationship. After our review of the parties’ briefs
and oral arguments, the appendix record, and the pertinent legal authority, we find no merit
to the petitioner’s assignments of error. We therefore affirm his convictions and the
resulting sentence.
I. FACTS AND PROCEDURAL HISTORY
The petitioner spent the evening prior to the shooting with Ms. Kennedy at
her apartment. At some point the couple discovered that Ms. Kennedy’s front passenger
tire was leaking air and they inflated the tire. Because he had to be at work early the next
morning, between 4:30 and 5:00 a.m. Ms. Kennedy drove the petitioner to his house to get
his vehicle. The petitioner later told law enforcement he was concerned that Ms. Kennedy
may have continued problems with the tire, so he asked Ms. Kennedy to contact him when
she arrived back at her apartment. Ms. Kennedy did not call the petitioner when she arrived
1 home, and after some time had elapsed the petitioner decided to leave work to check on
her.
The petitioner drove to Ms. Kennedy’s apartment and saw Ms. Kennedy’s
vehicle in the parking lot with Ms. Kennedy and her young daughter inside. He also saw
Mr. Browning outside of Ms. Kennedy’s vehicle, attempting to inflate the same tire the
petitioner had recently inflated. The petitioner exchanged words with Ms. Kennedy and
interacted with Mr. Browning. The investigating officer described this interaction as either
a verbal or physical dispute, after which the petitioner walked hurriedly back to his own
vehicle and retrieved his handgun. Meanwhile Ms. Kennedy instructed Mr. Browning to
get in the car so they could leave. Mr. Browning entered the vehicle and sat in the front
passenger seat. Ms. Kennedy placed the vehicle in gear and attempted to leave while the
petitioner went back to his own car. The petitioner returned to Ms. Kennedy’s vehicle with
a firearm, put the handgun through the passenger-side window, and shot Mr. Browning in
the face.
After the shooting, Mr. Browning got out of the vehicle and laid down on the
ground. Video from the apartment complex showed the petitioner walking over to Mr.
Browning, pausing near him, and then fleeing the scene.
2 Law enforcement quickly arrived on the scene, but Mr. Browning died prior
to their arrival. Officers spoke with Ms. Kennedy and with Violet Telfer, another witness
who had been in a nearby apartment at the time of the shooting. Ms. Telfer gave a recorded
statement to law enforcement in which she recounted that she looked outside the front door
after the shooting, saw Mr. Browning’s body on the ground, and observed the petitioner
standing over him. Further, Ms. Telfer told law enforcement that she heard the petitioner
say something akin to “I told you I would kill you, you son of a b****,” before fleeing the
scene in his vehicle.
Shortly after the shooting the petitioner surrendered to the police. Once in
custody, he provided a video-recorded statement to law enforcement. Initially the petitioner
stated that he would like to have an attorney; however, he later indicated that he would give
a statement without having an attorney present. In his recorded statement the petitioner told
law enforcement that he did not mean to shoot Mr. Browning, but rather had pointed the
gun in his face to scare him.
The case was presented to the grand jury, which returned an indictment
charging the petitioner with one count of first-degree murder (Mr. Browning) and two
counts of wanton endangerment (Ms. Kennedy and her daughter).
3 The record suggests that prior to trial the petitioner objected to the admission
of his video-recorded statement. However, at a pretrial hearing the petitioner changed his
position and stipulated that the statement was voluntarily given, without any coercion or
duress. When questioned under oath by the circuit court, the petitioner stated he was not
going to have his attorney attempt to suppress the statement. Thereafter, when the State
sought to introduce the petitioner’s video-recorded statement at trial, the court again asked
the petitioner and his counsel if they wished to object to or suppress the petitioner’s
statement. After his counsel again confirmed that the petitioner had no objection to the
statement being played, the court permitted the State to play the recorded statement for the
jury.
Ms. Kennedy testified at trial as to the events surrounding the shooting.
However, outside the presence of the jury and after she concluded her testimony, the circuit
court expressed concern that Ms. Kennedy’s words seemed slurred, and that near the end
of her testimony she had closed her eyes for long periods of time. The court ordered that
Ms. Kennedy submit to drug testing. While she tested positive for some illicit substances,
the court declined to make a finding that she was impaired; instead, the court noted that
she had recently had a child via Caesarean section and had been prescribed pain
medication. Although the petitioner requested that Ms. Kennedy be required to submit to a
blood test—which request was denied—the petitioner neither objected to nor moved to
4 strike Ms. Kennedy’s testimony and did not seek a limiting jury instruction regarding her
testimony.
Ms. Telfer, the witness who had seen the petitioner standing over Mr.
Browning’s body and had heard him speak after the shooting, did not appear at trial.
Accordingly, the State sought to introduce Ms. Telfer’s video-recorded statement. The
State argued that Ms. Telfer was unavailable and sought to admit the recorded statement
under several hearsay exceptions. At various points the State argued that Ms. Telfer’s
statement (regarding what she heard the petitioner say while standing over Mr. Browning’s
body) was admissible as a statement of the petitioner, a statement of a party opponent, a
statement against interest, a present sense impression, an excited utterance, or a statement
of a then-existing mental condition. The petitioner’s arguments in response likewise
focused on the West Virginia Rules of Evidence, and in particular whether Ms. Telfer was,
in fact, “unavailable” for purposes of the hearsay exceptions.1 Based on the arguments of
counsel, the circuit court found that Ms. Telfer was unavailable to testify under Rule
804(a)(5) and admitted her recorded statement as a “statement against interest” under Rule
804(b)(3).
1 As part of his hearsay arguments, the petitioner tangentially referenced that the State should not be allowed to play the statement because he was precluded from cross- examining the witness under the Confrontation Clause. However, he did not develop this constitutional argument before the court. Significant for our review, the court’s ruling did not address the Confrontation Clause.
5 The petitioner was ultimately convicted of one count of second-degree
murder and two counts of wanton endangerment. The circuit court denied his motion for a
new trial and sentenced him to forty years on the murder conviction, five years on one of
the wanton endangerment convictions, and ten days on the second wanton endangerment
conviction, with the sentences for the wanton endangerment convictions to run
concurrently to each other and consecutive to the sentence for the murder conviction.
II. STANDARD OF REVIEW
Our general standard of review is highly deferential:
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). With this in mind, we
proceed to the parties’ arguments.
III. DISCUSSION
6 On appeal the petitioner argues that the circuit court erred when it: (1) failed
to suppress his statement to police at trial; (2) failed to strike or provide a limiting
instruction related to Ms. Kennedy, who was under the influence when she testified; (3)
allowed the statement of Ms. Telfer to be played for the jury in violation of the
confrontation clauses of the federal and state constitutions; and (4) allowed the assistant
prosecuting attorney to participate in the petitioner’s trial despite his conflict of interest.
Initially, the petitioner contends that the circuit court erred at trial when it
failed to suppress his statement to law enforcement. This argument is undermined by the
record which reveals that during the pretrial proceedings both the petitioner and his counsel
assured the court that the petitioner had no objection to the admission of the statement. At
trial, the petitioner’s counsel reaffirmed this position.
It is well-settled that this Court applies a “raise or waive” rule: an objection
must be raised before the trial court to preserve an assignment of error or that error is
waived. Simply stated,
[o]ur general rule in this regard is that, when nonjurisdictional questions have not been decided at the trial court level and are then first raised before this Court, they will not be considered on appeal.
The rationale behind this rule is that when an issue has not been raised below, the facts underlying that issue will not have been developed in such a way so that a disposition can be made on appeal. Moreover, we consider the element of fairness. When a case has proceeded to its ultimate resolution below, it is manifestly unfair for a party to raise new issues on appeal. Finally, there is
7 also a need to have the issue refined, developed, and adjudicated by the trial court, so that we may have the benefit of its wisdom.
Whitlow v. Bd. of Educ. of Kanawha Cnty., 190 W. Va. 223, 226, 438 S.E.2d 15, 18
(1993) (citations omitted).
“‘“To preserve an issue for appellate review, a party must articulate it with
such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.”
Syllabus point 2, State ex rel. Cooper v. Caperton, 196 W. Va. 208, 470 S.E.2d 162 (1996).’
Syllabus point 10, State v. Shrewsbury, 213 W. Va. 327, 582 S.E.2d 774 (2003).” Syl. Pt.
1, State v. Sites, 241 W. Va. 430, 825 S.E.2d 758 (2019). Moreover, “[a]n error in the
admission of evidence not objected to by the defendant is deemed waived by him.” Syl. Pt.
10, State v. Bragg, 140 W. Va. 585, 87 S.E.2d 689 (1955). Simply put, “‘[o]ne of the most
familiar procedural rubrics in the administration of justice is the rule that the failure of a
litigant to assert a right in the trial court likely will result’ in the imposition of a procedural
bar to an appeal of that issue.” State v. Miller, 194 W. Va. 3, 17, 459 S.E.2d 114, 128
(1995) (quoting United States v. Calverley, 37 F.3d 160, 162 (5th Cir.1994) (en banc)).
Moreover, “West Virginia has always treated a failure to object to trial errors as a default
of any right to assert these errors on direct appeal or in habeas review.” State v. Marple,
197 W. Va. 47, 51, 475 S.E.2d 47, 51 (1996) (quoting Meadows v. Holland, 831 F.2d 493,
498 (4th Cir. 1987)).
8 In State v. LaRock, 196 W. Va. 294, 315-17, 470 S.E.2d 613, 634-36 (1996),
this Court explained that the raise or waive rule is designed to prevent a party from taking
one position below and a different one on appeal, for reasons grounded both in law and
logic. “It prevents a party from making a tactical decision to refrain from objecting and,
subsequently, should the case turn sour, assigning error (or even worse, planting an error
and nurturing the seed as a guarantee against a bad result).” LaRock, 196 W. Va. at 316,
470 S.E.2d at 635.
Here the circuit court gave the petitioner ample opportunity, both at a pretrial
hearing and then again at trial, to argue that his custodial statement should be suppressed.
Nevertheless, the petitioner expressly and unequivocally declined to do so. Instead, he
affirmatively stipulated to its voluntariness and its admissibility, thus making a tactical
decision to allow the statement to be played for the jury. For this reason, we find that this
assignment of error has been waived, and we decline to entertain the issue on appeal.
Next, the petitioner argues that the circuit court erred by not striking or
issuing a special jury instruction regarding the testimony of Ms. Kennedy, one of the
petitioner’s victims, because she tested positive for illicit substances after completing her
trial testimony. As set forth supra, the court ordered that Ms. Kennedy be drug tested after
noting that her voice was slurred and that she closed her eyes for long periods of time near
the conclusion of her testimony. Although Ms. Kennedy tested positive for illicit
9 substances, the court declined to make a finding that she was impaired or to inform the jury
of her positive drug screen.
Once again, this issue was not appropriately preserved for appeal. While Ms.
Kennedy was testifying, during cross-examination defense counsel elected not to question
her regarding her demeanor, and evidenced no awareness that there might be a problem;
rather, it was the court that sua sponte expressed concern and asked for the drug test after
the conclusion of the witness’s testimony. After Ms. Kennedy’s drug screen came back
positive the petitioner did ask for a blood test, but the record does not reflect that he sought
to strike the witness’s testimony, or that he sought a limiting instruction be given regarding
her testimony.
We note, however, that even assuming this assignment of error had been
preserved, the petitioner’s argument would be unavailing. Rule 601 of the West Virginia
Rules of Evidence states that “every person is competent to be a witness except as
otherwise provided by these Rules.” In State v. Merritt, 183 W. Va. 601, 608, 396 S.E.2d
871, 878 (1990), this Court stated that “[t]he only grounds for disqualifying a party as a
witness are that the witness does not have knowledge of the matters about which he is to
testify, that he does not have the capacity to recall, or that he does not understand the duty
to testify truthfully.” We also recognized that “every witness is presumed to be competent,
and neither feeblemindedness nor insanity renders a witness incompetent or disqualified.”
10 Id. Defense counsel failed to object, consistent with Merritt, that Ms. Kennedy lacked
knowledge of the matters about which she testified, that she did not have the capacity to
recall, that she did not understand the duty to testify truthfully, or that she was otherwise
unable to respond to counsel’s questioning at trial. To the contrary, Ms. Kennedy’s
testimony was consistent with the video from the apartment complex that was presented to
the jury. Most importantly, the petitioner cross-examined Ms. Kennedy, and the jury was
able to assess Ms. Kennedy’s demeanor and to give her entire testimony the weight they
felt it deserved.
Next, the petitioner alleges that the circuit court improperly admitted the
recorded statement of Ms. Telfer, the witness who saw the petitioner standing over Mr.
Browning and heard his last statement before leaving the scene. On appeal, the petitioner
contends that admission of this statement violated the Confrontation Clause contained in
both the Sixth Amendment to the United States Constitution and Article III Section 14 of
the West Virginia Constitution. The State argues that the witness’s statement was not
testimonial and therefore did not implicate the Confrontation Clause. See State v. Mechling,
219 W. Va. 366, 633 S.E.2d 311 (2006) (holding that the Confrontation Clauses contained
within the Sixth Amendment to the United States Constitution and within Article III
Section 14 of the West Virginia Constitution bar the admission of testimonial statements
11 made by a witness who does not appear at trial). See also Crawford v. Washington, 541
U.S. 36 (2004) (same).2
Although the petitioner argues on appeal that the circuit court violated his
constitutional rights protected by the Confrontation Clause of the United States and West
Virginia Constitutions, this Court’s appellate review is constrained by the record developed
2 According to Crawford and Mechling, “only ‘testimonial statements’ cause the declarant to be a ‘witness’ subject to the constraints of the Confrontation Clause. Non- testimonial statements by an unavailable declarant, on the other hand, are not precluded from use by the Confrontation Clause.” State v. Kaufman, 227 W. Va. 537, 711 S.E.2d 607 (2011) (citing Mechling, 219 W. Va. at 373, 633 S.E.2d at 318 (emphasis added)). Because the Confrontation Clause is implicated only when a statement is testimonial, the Mechling court addressed what constituted a testimonial versus a nontestimonial statement.
Under the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution, a witness’s statement taken by a law enforcement officer in the course of an interrogation is testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the witness’s statement is to establish or prove past events potentially relevant to later criminal prosecution. A witness’s statement taken by a law enforcement officer in the course of an interrogation is non-testimonial when made under circumstances objectively indicating that the primary purpose of the statement is to enable police assistance to meet an ongoing emergency.
Syl. Pt. 9, Mechling, 219 W. Va. at 366, 633 S.E.2d at 311. Per the Supreme Court of the United States, when determining what constitutes a testimonial statement, “[i]n the end, the question is whether, in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony.’” Ohio v. Clark, 576 U.S. 237, 245 (2015) (citations omitted).
12 before the circuit court. See State v. Campbell, 246 W. Va. 230, 240, 868 S.E.2d 444, 454
(2022) (“In determining whether the circuit court erred in declining to suppress [the
defendant’s] recorded interview, we are constrained to consider only arguments and
evidence that were before the circuit court at that time.”). Upon our review, we find the
issue was not appropriately preserved. At trial, the circuit court and the parties vigorously
discussed whether Ms. Telfer’s statement was inadmissible hearsay. During that hearsay
discussion, the petitioner’s counsel disputed whether Ms. Telfer was actually unavailable,
and noted, but only in passing, that admission of the statement would preclude him from
cross-examining Ms. Telfer “under the [C]onfrontation [C]lause[.]”The petitioner
proceeded to argue only that Ms. Telfer’s statement was inadmissible hearsay and failed to
advance any constitutional argument related to a potential violation of the Confrontation
Clause, including how or why this constitutional principle was applicable. Importantly, the
petitioner failed to even attempt to argue that the statement was testimonial, a necessary
predicate to implicate the Confrontation Clause.3 Accordingly, the court proceeded to rule
only on hearsay grounds, determined that the witness was unavailable pursuant to Rule
3 Consistent with his objection at trial, in his argument for a new trial the petitioner argued solely that Ms. Telfer was not truly unavailable for hearsay purposes and thus her statement was inadmissible hearsay pursuant to the West Virginia Rules of Evidence. Likewise, during that argument the petitioner failed to advance any substantive argument that Ms. Telfer’s statement was testimonial, a necessary prerequisite to implicate the Confrontation Clause.
13 804(a)(5) of the West Virginia Rules of Evidence,4 and ruled that her testimony was
admissible pursuant to a hearsay exception.
As noted above, the petitioner’s argument to the circuit court was focused on
this Court’s established hearsay rules. However, “‘[t]here is a distinct difference’ between
a confrontation clause objection and an objection based on hearsay. One does not preserve
the other.” Francois v. State, 711 S.E.2d 45, 47 (Ga. Ct. App. 2011) (citations omitted).
The petitioner made no argument to the circuit court that Ms. Telfer’s statement was a
testimonial statement in violation of the Confrontation Clause, the record demonstrates no
factual development of the issue, and the petitioner failed to secure a ruling from the court
regarding the Confrontation Clause.5 Not having properly preserved the issue below, the
4 Rule 804(a)(5) of the West Virginia Rules of Evidence provides instances when the declarant of a statement may be considered “unavailable as a witness,” and includes instances when the declarant “is absent from the trial or hearing, and the statement’s proponent has not been able, by process or other reasonable means, to procure . . . the declarant’s attendance or testimony[.]” Before the circuit court, the State claimed that Ms. Telfer was unavailable because it had been unable to reach her despite its repeated attempts to contact her in the weeks leading up to trial, either at her prior address or phone number. The petitioner, however, contended below that the State had adequate time to issue a subpoena to obtain Ms. Telfer’s presence at trial and the State’s efforts were insufficient. On appeal, the petitioner again conflates hearsay unavailability with Confrontation Clause unavailability. Compare W. Va. R. Evid. 804(a) (setting forth criteria for unavailability) with Ohio v. Roberts, 448 U.S. 56, 74 (1980) (providing that a witness is not unavailable for purposes of the Confrontation Clause “unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial” (quoting Barber v. Page, 390 U.S. 719, 724-25 (1968)), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36 (2005). 5 Indeed, the petitioner even failed to advance a meaningful argument in support of this assignment of error in his initial brief to this Court, as he failed to argue that 14 petitioner may not advance the Confrontation Clause argument for the first time on appeal.
See Sites, 241 W. Va. at 438-39, 825 S.E.2d at 766-67 (concluding that the petitioner’s
failure to raise a Confrontation Clause objection precluded this Court from addressing the
issue); State v. Shingleton, 237 W. Va. 669, 684, 790 S.E.2d 505, 520 (2016) (abrogated
by statute on other grounds). Thus, we decline to reach the merits of the petitioner’s
constitutional argument and will not disturb the circuit court’s decision allowing the
statement to be played for the jury. See State v. Whittaker, 221 W. Va. 117, 128, 650 S.E.2d
216, 227 (2007) (observing that trial courts are accorded “broad discretion” in determining
whether to admit evidence).
The petitioner also argues that the circuit court erred by allowing Assistant
Prosecuting Attorney Josh Ferrell to represent the State at the petitioner’s trial, as Mr.
Ferrell had previously represented the petitioner in a civil matter stemming from a motor
vehicle accident. Contrary to the petitioner’s appellate claim that this issue was not
addressed at trial, we find it was expressly raised and waived during voir dire. Mr. Ferrell’s
representation of the petitioner during the civil matter was dissimilar to this criminal action
and the parties agreed during voir dire that Mr. Ferrell’s participation in the petitioner’s
Ms. Telfer’s statement was testimonial or the context which caused it to be testimonial. In his reply brief the petitioner argues for the first time that the statement was testimonial and violative of the Confrontation Clause. Even then, his characterization that the statement was “testimonial” because it was adverse to the petitioner’s interests is unavailing. This belated argument falls woefully short of preserving this issue for appellate review.
15 criminal trial did not present a problem. Accordingly, the court did not rule on this issue.
Further, it is obvious to this Court that there was no disqualifying conflict as Mr. Ferrell’s
involvement in the case did not violate the West Virginia Rules of Professional Conduct.
Rule 1.9 of the West Virginia Rules of Professional Conduct states that “[a] lawyer who
has formerly represented a client in a matter shall not thereafter represent another person
in the same or substantially related matter in which that person’s interests are materially
adverse to the interests of the former client unless the former client gives informed consent,
confirmed in writing.” Here, the petitioner fails to argue that Mr. Ferrell previously
represented him in the same or a substantially related matter. Accordingly, we find no error.
IV. CONCLUSION
For the reasons stated above, we affirm the Circuit Court of Mingo County’s
February 16, 2023, order sentencing the petitioner for his convictions of second-degree
murder and two counts of wanton endangerment.
Affirmed.